18 F.

3d 1034
62 USLW 2593

Frank C. SCHOONEJONGEN; Wesley L. Losson; John S.

Dunning;
William Martone; William V. Hanzalek; Edward F. Ziek;
Melvin Deblock; Joseph Colquhoun; Joseph Majerscak;
Gerard Abbamont; and Olga Wolsey, on behalf of themselves
and all others similarly situated
v.
CURTISS-WRIGHT CORPORATION, Appellant in No. 925695.
Frank C. Schoonejongen, Wesley L. Losson, John S. Dunning,
William Martone, William V. Hanzalek, Edward F. Ziek,
Melvin
Deblock, Joseph Colquhoun, Joseph Majerscak, Gerard
Abbamont, and Olga Wolsey, on their own behalf and on behalf
of the class of persons they represent, Appellants in No. 925710.
Nos. 92-5695, 92-5710.

United States Court of Appeals,

Third Circuit.
Argued Sept. 10, 1993.
Decided March 3, 1994.
Sur Petition for Rehearing March 14, 1994.

Thomas M. Kennedy (Argued), Nicholas F. Lewis, Ira Cure, Lewis,

Greenwald, Kennedy, Lewis, Clifton & Schwartz, East Rutherford, NJ, for
appellees/cross appellants.
Rosemary Alito (Argued), Stephen F. Payerle, Carpenter, Bennett &
Morrissey, Newark, NJ, for appellant/cross appellee.
ORDER

IT IS ORDERED that:1. The petition for panel rehearing in No. 92-5695

is granted.
2. The opinion filed on December 28, 1993, is hereby vacated.
3. A revised panel opinion is hereby issued in the form attached to this
Order.
4. The pending petition for rehearing before the full court in No. 92-5695
will be acted upon in due course following circulation of the attached
amended opinion. This Order is without prejudice to the filing of a
petition for rehearing addressed to the new portions of the attached
opinion.
Before: STAPLETON, ROTH and LEWIS, Circuit Judges.
OPINION OF THE COURT
STAPLETON, Circuit Judge:

This appeal and cross-appeal involve a controversy precipitated by defendant

Curtiss-Wright's (CW's) termination of health insurance benefits for former
employees who had retired from a plant in Wood-Ridge, New Jersey. The
district court found that CW had reserved the right to amend its benefits plan to
allow termination of benefits, but that CW had violated ERISA Sec. 402(b)(3),
29 U.S.C. Sec. 1102(b)(3), by failing to include an amendment procedure
among the plan's provisions. The court concluded that the lack of an
amendment procedure rendered invalid a purported amendment authorizing
termination of plaintiffs' benefits. As a result, the district court entered a
judgment in excess of $2 million in favor of the plaintiffs' class. It declined,
however, to find a non-terminable lifetime right to benefits for the plaintiffs'
class. We will affirm.

I. FACTUAL BACKGROUND
2

The facts are largely undisputed. CW owns a number of industrial plants. One,
in Wood-Ridge, New Jersey, opened during World War II and did defenserelated work for forty years. Following a period of declining business, this plant
closed in late 1983. At that time, CW notified a class of individuals who had
retired from the Wood-Ridge plant that their health benefits were being
terminated.

In 1984, a number of retirees who had their benefits terminated brought this suit
as a class action on behalf of "all those retired Wood-Ridge employees who
were not members of the bargaining unit represented by the United Auto
Workers at the time of their retirement and whose post-retirement medical
benefits were terminated or denied on or about December 1, 1983." The
complaint alleged that CW's termination of benefits was wrongful and that the
plaintiffs had a vested right to retiree health benefits for life. Plaintiffs sought
damages as well as declaratory and injunctive relief.

A. The Benefit Program: 1966-82

4

In 1966, CW established a post-retirement health benefits program for the

Wood-Ridge facility. CW was the plan sponsor and administrator of the plan,
as well as its sole source of funding. From 1966 to 1983, the benefits were
provided by a succession of health insurance plans provided by several different
carriers. Each time a plan terminated and a new one was initiated, notice was
apparently sent to the plaintiffs.

From 1966 through 1970, Liberty Mutual provided the insurance benefits.
During this period two booklets were sent to retirees stating that benefits would
terminate upon death or "if the Group Policy terminates." From 1971 through
1972, Prudential was the insurance carrier for retiree health benefits.
Apparently, little, if anything, was provided during this period in the way of
documentation. From 1973 through 1974, Blue Cross/Blue Shield provided
benefits and CW sent retirees a letter summarizing those benefits. The letter
stated that coverage would terminate upon death or "the date the class of
persons of which the retiree is a member ceases to be covered by the program"
and also stated that CW "reserves the right to modify, revoke, suspend, change,
or terminate the program, in whole or in part." The term "class of persons of
which the retiree is a member" was not defined. However, the contract between
CW and Blue Cross/Blue Shield included in the classification of employees
eligible for benefits: "All full-time salaried non-bargaining exempt and nonexempt Employees retired prior to January 1, 1973" and "All full-time salaried,
non-bargaining exempt Employees retired on or after January 1, 1973."

In September, 1976, CW established a welfare benefit plan in accordance with

the recently enacted ERISA statute. The plan had a written Constitution and
Trust Agreement. The Constitution provided in part that "the Company reserves
the right at any time and from time to time to modify or amend, in whole or in
part, any or all of the provisions of the Plan." It also provided that "the
Company reserves the right to terminate the Plan established hereby for any
reason at any time." The Constitution did not specify any particular benefits but

simply incorporated any "plan or plans" CW might "from time to time adopt."
Also at that time, CW changed the manner in which it provided benefits: it
began to self-insure, at least with respect to the medical-surgical benefits, and
contracted with various carriers to administer the program.
7

In accordance with ERISA's requirements, Summary Annual Reports (SARs)

were provided to plan participants. Starting in 1979, CW added the following
reservation language to these SARs: "The company expects and intends to
continue this plan indefinitely, but reserves the right to discontinue or amend
it."

Plaintiffs claim that from 1976 through 1983, although active employees
received Summary Plan Descriptions (SPDs), retirees did not. CW insists that
SPDs were sent to retirees. In any event, the 1976 SPD, which was prepared by
CW and Prudential and not replaced until 1983, provided in part: "When your
employment terminates, or you cease to be a member of a class eligible for
insurance under any part of the plan, your insurance under that part of the plan
will cease.... Your insurance under the group policy will also terminate upon
discontinuance of the group policy." Nothing in the SPD defined "class,"
although the underlying agreement between CW and Prudential listed sixteen
classes of employees including: "14. All full-time exempt retired salaried
employees located in the United States" and "15. All full-time Retired
Employees ... [who] (ii) are classified as full-time non-bargaining non-exempt
employees."

A five-page "highlight summary" of exempt retiree benefits, first distributed to

exempt retirees in 1973 and revised in 1975 to reflect the change from Blue
Shield to Prudential, explained:

Termination of Coverage
10retiree's coverage will terminate on the date of his or her death or on the date the
A
class of persons of which the retiree is a member ceases to be covered by the
Program.
******
11
12
CURTISS-WRIGHT
CORPORATION RESERVES THE RIGHT TO MODIFY,
REVOKE, SUSPEND, CHANGE, OR TERMINATE THE PROGRAM IN
WHOLE OR IN PART, AT ANY TIME.
13

App. 296-97, 428-29.

B. The Benefit Program: 1982-84

14

In 1982, CW began adding the following language to all letters, or other

documents, involving the benefit plan: "Although the company fully expects to
continue this benefit, you should be aware that unlike your retirement benefit
which is a vested benefit, the retirement health care coverage is not a
guaranteed benefit and therefore is subject to change or termination."

15

In 1983, concurrent with a change in carriers, a new SPD was issued and
distributed to active employees. Plaintiffs and CW dispute whether the SPD
was distributed to retirees. This SPD stated: "Coverage under this Plan will
cease for retirees and their dependents upon the termination of business
operations of the facility from which they retired." In addition, it stated:
"Although the Company expects this Plan to continue in its present form for an
indeterminable period, this Plan is not a vested Plan and as such is subject to
modification or termination at any time." CW contends that the provision
allowing termination of retiree benefits in the event of a plant closure was
intended as a clarification; plaintiffs claim it was an amendment.

16

In November 1983, CW announced that the Wood-Ridge plant would close and
that in accordance with the provision in the 1983 SPD, retiree benefits would be
cut off for non-bargaining unit employees who retired from the Wood-Ridge
plant. This termination of benefits allegedly contradicted oral representations
made to many of the retirees that their health benefits would continue for life.1
The plaintiffs brought this suit in 1984 alleging breach of contract and
violations of ERISA.

C. The District Court's Decision

17

After six years of litigation, the district court issued its decision in 1990
following a bench trial. The court found that CW had reserved the right to
amend its plan. In particular, it referred to the express reservation of such a
right in the 1976 Plan Constitution, although it noted that other documents also
evidenced such a reservation. The district court further found that the term in
the 1983 SPD permitting termination of retiree benefits upon closure of the
plant at which they had worked was not a clarification of an already existing
plan term, but rather was a new term. Accordingly, the district court held that
this new term could only be effective if it had been added to the plan as an
amendment.

18

The district court observed that, contrary to ERISA Sec. 402(b)(3), 29 U.S.C.

Sec. 1102(b)(3), the plan did not specify procedures for amendment of the
plan's terms. It further concluded that the manner in which the amendment was
added to the plan in this case did not comply with any unpublished amendment
procedures. As a result, the district court held that the amendment was invalid.
It followed that the termination of plaintiffs' retiree benefits was contrary to the
terms of the plan.
19

CW appeals from the district court's judgment against it; plaintiffs cross appeal
from its determinations that CW reserved the right to amend the plan and that
plaintiffs have no vested health benefits.2

II. CURTISS-WRIGHT'S APPEAL

A. Curtiss-Wright's Failure to Provide an Amendment
20
Procedure
21

CW insists that: (1) its plan contained an amendment procedure in compliance

with ERISA Sec. 402(b)(3) and the 1983 amendment was adopted in
accordance with that procedure; and (2) even if there was a violation of ERISA
Sec. 402(b)(3), striking a plan term is not an appropriate remedy for a violation
of that subsection.

1. Was ERISA Sec. 402(b)(3) Violated?

22
23

The provision of CW's plan relating to amendments is the statement in the

Constitution and other documents that "[t]he Company reserves the right at any
time and from time to time to modify or amend, in whole or in part, any or all of
the provisions of the plan." CW contends that this suffices to satisfy the
requirements of Sec. 402(b)(3) which provides in part that: "Every employee
benefit plan shall-- ... (3) provide a procedure for amending such plan, and for
identifying the persons who have authority to amend the plan...." 29 U.S.C.
Sec. 1102(b)(3) (1988). We disagree.

24

A simple reservation of a right to amend is not the same as a "procedure for

amending [the] plan"; nor does it provide a procedure "identifying the persons
who have authority to amend the plan." A primary purpose of Sec. 402(b)(3) is
to ensure that all interested parties will know how a plan may be altered and
who may make such alterations. Only if they know this information will they
be able to determine with certainty at any given time exactly what the plan
provides. The reservation in the CW plan does not accomplish these objectives,
and acceptance of CW's argument would render requirements of Sec. 402(b)(3)

essentially meaningless.
25

CW cites Huber v. Casablanca Industries, Inc., 916 F.2d 85 (3d Cir.1990) in

support of its position. In Huber, we concluded that a plan provision stating that
"the Trustees may amend or modify this plan in whole or in part" specified an
acceptable amendment procedure; namely "modification by the Trustees" in a
context where amendments had been formally adopted by resolutions at a
regularly constituted board meeting in accordance with the established process
of the trustees. Id. at 106. CW argues by analogy that there was an acceptable
amendment procedure specified here; namely, modification by the Company.
Section 402(b)(3) states, however, that the procedure provided by the plan
must permit the identification of the persons who have the authority to modify
the plan; "the Trustees" clearly identifies the authorized persons, "the
Company" does not. An individual reading the Huber plan could recognize the
provision in question as describing a specific procedure for amending the plan;
here, one is unable to tell what individuals or bodies within the Company could
promulgate an effective amendment. Had the CW plan stated that the plan
could be modified by the "Board of Directors," rather than "the Company,"
then Huber might provide an appropriate analogy.3

26

We conclude that Huber is distinguishable. We agree with the district court that
CW's plan was in violation of Sec. 402(b)(3).4

2. Does a Violation of Sec. 402(b)(3) Warrant Striking the

27
Purported Amendment?
28
29

In at least three previous cases, we have noted that a violation of Sec. 402(b)(3)
might prevent any purported amendment from taking effect, but we have
expressly declined to decide that question. See, e.g., Deibler v. Local Union 23,
973 F.2d 206, 210 n. 7 (3d Cir.1992) ("[A]rguably, ... a plan cannot be
amended unless and until an amendment procedure is added to the plan and
complied with.") (quoting Frank v. Colt Industries, Inc., 910 F.2d 90, 98 (3d
Cir.1990), citing Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1163 n. 9
(3d Cir.1990)). This case requires that we now reach that issue.

30

CW argues that the invalidation of the purported amendment due to the failure
of CW to comply with Sec. 402(b)(3) would be inconsistent with our decision
in Hozier. CW reads Hozier as holding that creation of "a substantive remedy
for procedural violations of ERISA would contravene ERISA's statutory
scheme" and that "procedural violations do not create rights to benefits in
disregard of the plan terms." As a general matter, these propositions make

sense. However, they are inapplicable here.

31

Hozier addresses the issue of whether a failure to comply with ERISA's notice
or reporting requirements confers a right to receive benefits not provided for in
the plan. There is something at stake here far more fundamental than a failure
to comply with ERISA's procedural requirements pertaining to reporting and
notice. The basic premise of ERISA is that a plan sponsor will be free to
determine what benefits the plan will provide, but that once such a
determination has been made, the benefits must be described in a written plan
that is available to participants at any time upon request. Thereafter the
participants are entitled to rely upon the plan document as defining the benefits
currently being provided. Unless and until the written plan is altered in a
manner, and by a person or persons authorized in the plan, neither the plan
administrator nor a court is free to deviate from the terms of the original plan. It
is in this way that ERISA provides certainty and protects participants against
frustration of their legitimate expectations.

32

Unlike the situation in Hozier where the plaintiffs sought benefits not provided
for in the plan, the plaintiffs' right to benefits in this case is derived exclusively
from the terms of the plan; all the district court did was enforce the plan as
written. The case law expressly recognizes that amendments which are not
adopted substantially in accordance with a plan's amendment procedures are
ineffective to alter the terms of a plan. See, e.g., Albedyll v. Wisconsin
Porcelain Co. Revised Retirement Plan, 947 F.2d 246, 255 (7th Cir.1991);
Frank, 910 F.2d at 98 ("Where a plan has complied with ERISA by setting forth
a method for accomplishing amendment, of course each putative amendment
will be evaluated with reference to that method."). The same result is required
where there are no amendment procedures at all. To hold otherwise would
place those who violate Sec. 402(b)(3) by including no procedure for
amendment in a plan in a better position than those who comply with that
requirement and would thereby discourage employers from complying with
Sec. 402(b)(3).

33

We therefore hold that the absence of an amendment procedure in CW's plan

documents renders invalid its purported 1983 amendment allowing termination
of plaintiffs' benefits. Contrary to CW's suggestion that such a holding will
"undermine the integrity of the plan documents," we conclude that such a
holding is necessary to assure the integrity of those documents.

34

By so holding, we do not suggest that a plan sponsor that reserves a right to

amend its plan but neglects to include a provision complying with Sec. 402(b)
(3) is forever foreclosed from effectively utilizing its reserved power. The

congressional scheme embodied in ERISA will be best served by a rule that an

amendment designed solely to bring a plan into compliance with Sec. 402(b)(3)
can be effectively adopted by formal action of those who possess the sponsor's
final management authority, in the case of CW by formal action of its board of
directors. However, unless and until CW's board thus brings its plan into
compliance and thereafter a further amendment terminating plaintiffs' benefits
is adopted in accordance with the procedures thus designated, plaintiffs are
entitled to receive the benefits specified in the plan.5
B. Curtiss-Wright's Right to Terminate Benefits
35
36

Alternatively, CW suggests that we should sustain the November 1983

announcement as a termination of its entire welfare benefit plan and the
institution of a new plan without benefits for the retirees of the Wood-Ridge
plant. It points out that it reserved the right to terminate its plan as well as to
amend it and that Sec. 402(b)(3)'s requirement of a plan provision specifying a
process for amendments does not apply to plan terminations. Because CW
could have terminated its entire plan without implicating Sec. 402(b)(3) and
could then have instituted a new plan without benefits for the Wood-Ridge
retirees, CW insists that it should be held to have accomplished the same result
in "one step rather than two." We are unpersuaded.

37

CW's alternative theory will simply not fit the facts of this case. The record is
devoid of any evidence that anyone at CW, much less a body having authority
to terminate the plan, gave any consideration whatever to the business, public
relations, tax or other legal implications of doing so. Moreover, after the
announcement, no one at CW treated it as effecting a termination of the plan.
No notice of plan termination was sent to all of the plan's participants, for
example, as would have been required by ERISA if CW had intended to
terminate it. 29 U.S.C. Sec. 1024(b)(1). Most important, it is incumbent on us
to look at the economic reality of transactions involving a ERISA plans. To
characterize the November 1983 announcement as a termination of CW's
welfare benefit plan would be to ignore the reality of the matter. That
announcement was nothing more than an application to the Wood-Ridge plant
of the 1982 plan amendment, an amendment that CW regarded as only a
"clarification" of a continuing plan.

38

We are confident that the drafters of Sec. 402(b)(3) would view the situation
before us as one involving an attempted amendment to the plan in 1982, an
amendment that could be effected only in a manner consistent with the
requirements of that section. We are not disposed to indulge in a legal fiction in
order to sanction an end run around the safeguards Congress there imposed.

III. PLAINTIFFS' CROSS-APPEAL

A. Reservation of Right to Amend
39

Turning to the cross-appeal, plaintiffs argue that the district court erred in
concluding that CW reserved the right to amend its plan. They note that the
district court, in so concluding, relied heavily on the reservation language
contained in the Plan Constitution. Plaintiffs then stress that the Constitution,
by its terms, facially refers only to "employees," not retirees. They further point
out that one of CW's witnesses gave testimony susceptible of an interpretation
that the Constitution was understood not to apply to the Blue Cross
hospitalization program. Thus, according to the plaintiffs, the district court's
conclusion about CW's reservation of a right to amend is without record
support.

40

The district court understandably declined to hold that the Constitution and
other plan documents were unambiguous as a matter of law. It held a trial in
order to put itself in a position to consider all available evidence bearing on the
sponsor's intent, the participants' reasonable understanding, and the past
practice of the parties. Having considered all of this evidence, the district court
made a finding of fact, in accordance with the teachings of Alexander v.
Primerica Holdings, Inc., 967 F.2d 90 (3d Cir.1992), on whether the power to
amend had been reserved. We may not disturb that finding unless, viewed in the
context of all of the evidence, it is clearly erroneous. We decline to so
characterize it.

41

First, while it is true that the Constitution does not specifically refer to retired
employees, there is ample support for the district court's understanding of that
document. On its face, the Constitution refers only to employees. It defines
employees as individuals who are "intended to be employed for one thousand
or more hours in a calendar year or a period of twelve months from an
employee's date of hire." According to CW and its witnesses, the employee
definition was meant only to distinguish between full-time and part-time
employees and was understood to include those employees who had retired
from full-time employment. Moreover, such an intent is reflected in several
contemporary documents and is confirmed by the practice of the parties in the
administration of the plan. Indeed, it was stipulated by the parties that retiree
benefits were provided and administered in accordance with the framework
established by the Constitution. Finally, CW's witnesses testified that when
retirees asked to see plan documents they would be shown the Constitution as
well as other documents.

42

Moreover, while the district court relied upon the Constitution, it relied as well
on the clear and express reservation of the right to amend contained in every
SPD following 1979 and in the summary of exempt retiree benefits first
distributed in 1973 and revised in 1975.

B. Right to Lifetime Benefits

43

Plaintiffs acknowledge that the vesting requirements of ERISA do not apply to

retiree health benefits. They correctly point out, however, that a sponsor can
voluntarily create vested retiree health benefits, and they insist that CW did so.
More particularly, they "contend that the Court below erred in failing to
recognize that the documents in this case, when considered in light of all the
surrounding evidence, created a non-terminable right to receive retiree health
insurance benefits for so long as Curtiss-Wright Corporation maintains a postretirement health insurance program." Plaintiffs' Reply Brief, p. 7. It is apparent
from the plaintiffs' brief that they regard this argument as being independent of
the preceding argument that the court erred in finding a reserved right to
amend. It seems to us, however, that our conclusion in the preceding section is
a complete answer to this argument. Even if the plan contained unambiguous
assurances that all retirees would have health insurance benefits for life so long
as CW maintained a post-retirement health insurance program, the general
reserved right to amend the terms of the plan in whole or in part would render
the right of any retiree or group of retirees terminable by the adoption of a
legally effective amendment.6

44

As we understand plaintiffs' briefs, they seek to avoid the effect of the court's
finding of a reserved right to amend by implying that a general right to amend
somehow does not authorize an amendment like the one CW purported to adopt
in 1983. They explain:

45the Court's determination that the Curtiss-Wright Post-retirement health insurance

...
program was amendable did not address the issue of whether a general right to
amend the Plan in whole or in part included a right to alter the classes of participants
to eliminate benefits for some but not all participants based on a criteria that had
never before been set forth as a determinative factor, i.e. whether the plant where
someone last worked was still a functioning plant or had been closed.
46

Plaintiffs' Reply Brief, pp. 7-8.

47

While the court may not have expressly addressed this issue, it is apparent from
the court's opinion that it properly decided it in CW's favor. One important and

proper purpose of reserving a general right to amend is to permit the

conditioning or cessation of any participants' benefits not vested by virtue of the
mandate of ERISA in ways not originally foreseen in order to meet
unanticipated changes of circumstance.7
IV. CONCLUSION
48

The judgment of the district court will be affirmed.

SUR PETITION FOR REHEARING

March 14, 1994
49

Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN,

GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ROTH,
and LEWIS, Circuit Judges.

50

The petition for rehearing filed by appellant in the above-entitled case having
been submitted to all the available circuit judges of the circuit in regular active
service, and a majority of the circuit judges of the circuit in regular active
service not having voted for rehearing by the court in banc, the petition for
rehearing is denied.

A number of witnesses, principally members of the plaintiff class, testified that

they had been told, usually at their hiring or upon their retirement, that retiree
health benefits would continue for life. CW witnesses disputed this

We exercise appellate jurisdiction over this case pursuant to 28 U.S.C. Sec.

1291. The district court had subject matter jurisdiction over this case pursuant
to 28 U.S.C. Sec. 1331 and 29 U.S.C. Sec. 1132(f)

Even if we were willing to equate "by the Company" with "by the board of
directors," the record here does not indicate that the 1983 amendment was
adopted by CW's board. While Judge Roth agrees with our conclusion that the
amendment to the plan was ineffective, she does not agree with our reasoning
on this point. Instead, Judge Roth believes that action taken by "the Company"
means action taken by the board of directors or whomever of the company has
the authority to take such action under the corporation law of the state of
incorporation of the company in question. As CW is a Delaware corporation,
Judge Roth would consider action by "the Company" to be action by the board
of directors pursuant to 8 Del.C. Sec. 141(a): "The business and affairs of every

corporation organized under this chapter shall be managed by or under the

direction of a board of directors, except as may be otherwise provided in this
chapter or in its certificate of incorporation." Thus the amendment in question
here was ineffective because neither CW's board nor any other person or entity
within CW with the power to act on behalf of "the Company" ratified it
4

CW argues that the "amendment procedure" (i.e. modification by the

Company) was effectively complied with since agents of the company added
the amendment in writing to the plan. It notes that this was not an informal or
unwritten plan amendment of the type invalidated in cases like Hozier v.
Midwest Fasteners, Inc., 908 F.2d 1155 (3d Cir.1990). In addition, the
Company's intent to amend was clear, unlike in Frank v. Colt Industries, Inc.,
910 F.2d 90 (3d Cir.1990). Nevertheless, while a written amendment
incorporated into the plan's terms and a clear intent to amend may be necessary
conditions to a successful amendment, they are not sufficient. ERISA Sec.
402(b)(3) requires that a plan specify amendment procedures and those
procedures must be complied with. While written incorporation of a new plan
term into the preexisting plan documents may be necessary for employees to
understand their rights vis-a-vis the new term, it is also important that
employees understand how their rights may be modified in the future; this latter
goal can only be accomplished if there are published, enforceable amendment
procedures

Our holding here should not be construed to extend beyond a situation in which
a plan sponsor amends the plan in a fashion which is advantageous to the
sponsor's interest and in which the beneficiaries of the plan later challenge that
amendment. We do not attempt to encompass in this decision other factual
scenarios under which an amendment might be challenged

Contrary to plaintiffs' suggestion, this case is unlike Alexander v. Primerica

Holdings, Inc., 967 F.2d 90 (3d Cir.1992). The issue in that case was whether
the arguably limited right of amendment reserved in that Plan was broad
enough to authorize the amendment that the sponsor had adopted. Here, the
right found by the district court to have been reserved was a general right to
amend "in whole or in part, any or all provisions of the Plan." App. 547-48

Plaintiffs' reliance on 29 U.S.C. Sec. 1022(b) is therefore misplaced. Although

SPDs, under the requirements of that section, must state the "circumstances
which may result in disqualification, ineligibility, or denial or loss of benefits,"
they cannot state specific circumstances that are not part of the plan's terms but
could hypothetically be added to the plan in the future through a valid
amendment. 29 U.S.C. Sec. 1022(b). On a similar note, at oral argument
plaintiffs relied on our recent decisions in Fisher v. Philadelphia Elec. Co., 994

F.2d 130 (3d Cir.1993) and Kurz v. Philadelphia Elec. Co., 994 F.2d 136 (3d
Cir.1993). These cases are, however, distinguishable. There, a material issue of
fact existed as to whether agents of the plan administrator had made affirmative
misrepresentations to plan participants, i.e., telling them that the company was
not considering an early retirement plan when in fact it was. However, we
cautioned that "ERISA does not impose a 'duty of clairvoyance' on fiduciaries"
and that "[a]n ERISA fiduciary is under no obligation to offer precise
predictions about future changes to its plan." Fisher, 994 F.2d at 135